“I Donald J. Trump, am calling for a total and complete shutdown of Muslims entering the United States, until our country’s representatives can find out what is going on.”
Trump’s travel ban of 2017 is, to use a biblical metaphor, a case of “old wine in new bottles,” or more appropriately, a “wolf in sheep’s clothing.” It is an attempt to put a legal veneer in what is basically a crude example of Islamophobia.
When Trump first proposed a Muslim ban in 2015, there was a withering backlash from the legal community. Apologists of the alt right, such as Rudy Giuliani, warned him that a global ban based on a religious test would be overturned by the federal courts on constitutional grounds. Giuliani proposed that a regional ban, based on the concept of imminent danger to the U.S., rather than on religious affiliation, would withstand constitutional scrutiny.
Jan. 27, 2017, Trump enacted his executive order under the caption, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The executive order banned the entry into the United States of nationals from seven countries in the Middle East and North Africa: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The problem with the “imminent danger” hypothesis is that there is no causal relation between the danger posed by nationals from these banned countries and the incidents of so-called Islamic terrorism in the United States.
The most significant terrorist incident in the history of the United States, was the terrorist attack on the World Trade Center, which occurred Sept. 11, 2011, and caused almost 3,000 casualties. Fifteen of the 19 hijackers on the planes that caused the explosions came from Saudi Arabia, two came from the Persian Gulf states adjacent to Saudi Arabia, one came from Egypt and one from Lebanon. None of the hijackers came from any of the countries designated in the travel ban of 2017. Saudi Arabia, the Persian Gulf states, Egypt and Lebanon were not on the list of banned countries.
There have been four other cases of Islamic terrorism in the United States between 2011 and 2017. There was the Fort Hood massacre Aug. 28, 2013, in which 13 individuals were killed. There was the San Bernardino shooting of 2015, in which 14 individuals were killed. There was the Orlando nightclub shooting of June 12, 2016, in which 49 people were killed. There was the Minneapolis shopping mall incident of Sept. 18, 2016, in which one person was killed.
All of the perpetrators in these terrorist incidents were citizens of the United States. In the case of the shooter in San Bernardino, his parents came from Saudi Arabia. In the case of the Orlando nightclub shooter, his parents came from the Afghan Pakistan border. In the case of the killer in the Minneapolis shopping mall incident, his parents came from Somalia.
Thus, in all of these cases, none of the individuals were residents of any of the designated countries, and in only one instance, did the parents of any of the perpetrators come from one of these designated countries—Somalia. The alt right has raged, ranted and hallucinated about the danger of Islamic terrorism. However, only 77 individuals have been killed in incidents described as Islamic terrorist incidents, whereas thousands of Americans have died at the hands of U.S. citizens armed with hand guns. Thus, the clear and present danger to American national security, is not Islamic terrorism, but U.S. citizens armed with guns.
Some of the legal commentators have claimed that the president has broad and unrestricted discretion to bar aliens from entry into the United States. That is not true. In 8 U.S. Code §1182(a), the specific grounds under which the attorney general or the director of Homeland Security can bar entry into the United States is defined. There are three broad categories of exclusion: (a) health related grounds, (b) criminal related grounds and (c) terrorist related grounds. In terms of terrorist activity, the attorney general or the director of Homeland Security can only bar an individual who (1) has engaged in terrorists activity, (2) is a member of a terrorist organization, (3) has endorsed or espoused terrorist activity or (4) has solicited any individual to engage in terrorist activities.
Jan. 28, 2017, three petitioners filed an Emergency Motion for Stay of Removal on behalf of themselves and others similarly situated. The action was filed in the United States District Court in the Eastern District of New York. The petitioner, Hameed Khalid Darweesh, testified that he was the recipient of a Follow to Join Visa to join his wife and child, who are lawful permanent residents, residing in Houston. He was also the recipient of a permanent resident visa issued by consular officers in Bagdad, Iraq. He testified about his background in Iraq. He was trained and worked as an electrical engineer in Iraq, between 2003 and 2013. He was contracted by the U.S. government to work in a variety of positions, which placed him in substantial risk of being targeted, attacked and killed by anti-American militias and insurgents. He was targeted by insurgents in Baghdad, and had to leave Bagdad for Kirkuk. He was stopped in a market in Kirkuk and threatened, and had to flee to Erbil. Based on these threats, and his 10 years of service to the United States Government, Darweesh applied for and received an Iraqi Special Immigrant Visa Oct. 1, 2014.
To obtain his SIV, Darweesh had to undergo various security checks, interviews and a medical examination. He received a letter from Lena Levitt, the refugee coordinator in Iraq, who stated that Darweesh had provided “faithful and valuable service to the United States Government.” Despite receiving his consular approval in January 2015, it took more than two years for Darweesh to receive his green card.
The Department of Justice failed to rebut Darweesh’s allegations of his allegiance to the United States Government. They failed to present any empirical or anecdotal evidence that Darweesh’s immigrant visa should be revoked. They failed to present any evidence that Darweesh (1) had engaged in a terrorist activity, (2) was a member of a terrorist organization, (3) had endorsed or espoused any terrorist activity or (4) had solicited any individual to engage in terrorist activity.
As a result of the DOJ’s failure to substantiate any claim of terrorism, or to rebut the allegation that Darweesh would suffer irreparable harm and injury if he was sent back to Iraq, the court granted a Temporary Restraining Order to prevent the government from deporting Darweesh and others back to their country of origin. It deferred for another day the arguments on the constitutionality of government’s executive order.
The ACLU has contended that the travel ban is unconstitutional, because it violates three provisions of the Constitution: the establishment clause of the First Amendment, the due process clause of the Fifth Amendment and the equal protection clause of 14th Amendment. I believe when this hearing is held in the next few months, the ACLU will establish, by the fair preponderance of the credible evidence, that this executive order did indeed violate these three provisions of the U.S. Constitution.
Brothers and sisters in the Caribbean community, do not be complacent. As the saying goes, “If they come for the Muslims and Mexicans today, they will certainly come for you tomorrow.” Eternal vigilance is the price of liberty.